Here is the situation, I married a US citizen on a visa waiver while
on holiday in the US. We were married within 30 days of my entry, and
now I would like to get my status changed to permanent legal resident.
My husband consulted an attorney who said that since I entered on the
visa waiver this was going to be considered fraudulently entering the
US, and the best chance for me to get my status changed would be to
leave the country and have my husband file to have me brought over
(some I-something form?). I do not want to leave the country! And my
husband does not want me to leave, our attourney says we can try to
just apply for a status change but there could be some sort of hearing
process which could result in my being barred entry. So the question
is: Given a marrige on a Visa Waiver within 30 days of entry, what are
the chances for one of these big hearings and mess of problems? Is our
attorney being overly catious?

Hi wchucky-ga,

Thanks for allowing me the opportunity to answer this question. I have
quite an extensive personal knowledge in USCIS (United States
Citizenship and Immigration Services, formerly the INS) procedures. I
should point out that Google Answers is not intended to provide Legal
Advice, and no part of this answer should be construed as Legal
Advice.

If the marriage occured on the "spur of the moment" and was not
planned prior to entry on the visa waiver, you should have little to
no issues with the USCIS. However, if there was a planned wedding
prior to you arriving in the USA, that might create an issue for you.

Given your present situation, I would *NOT* leave the USA. I would
instead file the forms as detailed on the USCIS website. You can find
the document here:
http://uscis.gov/graphics/formsfee/forms/i-485.htm#fba

That link will take you directly to the application procedure to
adjust status based on family.

Basically, you will need to file the following forms:
I-485, Application to Register Permanent Residence or to Adjust Status 
G-325A, Biographic Information 
Either your original I-130, Petition for Alien Relative (if you are
filing concurrently), or a copy of your I-797, Notice of Action (if
the petition was already approved).
I-864, Affidavit of Support 
I-693, Medical Examination of Aliens Seeking Adjustment of Status 
All required supporting documentation as listed on the above forms. 
You may download a package of all of these forms in PDF format.

You may also submit the following forms:

G-28, Notice of Entry of Appearance as Attorney or Representative (if
you have a lawyer)
I-765, Application for Employment Authorization, if you want to work
while your application is processed
I-131, Application for Travel Document, if you need to travel outside
the United States while your application is processed
I-485 Supplement A, and penalty fee if applicable. See 8 CFR 245.10 
I-601, Application for Waiver of Grounds of Excludability, if applicable 

Since you married a US Citizen, you do not have to pay the penalty fee
that is detailed in the I-485A supplement.

You will ALSO need to file concurrently the form I-130 that will
establish your right to an immigrant visa. That form can be found
here:
http://uscis.gov/graphics/formsfee/forms/i-130.htm

Again, I would NOT leave the USA -- if you did so, you may be barred
from re-entry until such time as your application is approved. That
can take many months to process. Instead, follow the directions on the
forms above and file them with the Service Center that has authority
over your region.

Most family based petitions are simple enough to do without the help
of an attorney.

This question is not closed until you close and rate it. Should you
have any follow-up questions, please do not hesitate to ask for
clarification prior to rating and closing the question.

Thanks!

Legolas-ga

No search was performed.

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Request for Answer Clarification by wchucky-ga on 26 Aug 2004 06:23 PDT

Thank you! I really do not want to leave! Our marriage was 'spur of
the moment' for me, my husband was planning it however and did make
some preparations in Australia. You said at the start this could cause
some 'issues'? When I signed that visa waiver I didnt know I would be
getting married, fraud sounds like I am a criminal!

---

Clarification of Answer by legolas-ga on 26 Aug 2004 09:07 PDT

As long as you didn't enter with the 'intention' to marry, and you can
show that the marriage license was obtained after you entered the USA,
that invites were sent out after you entered the USA, etc.. You should
be fine. Quite frankly, the issue may never even come up. The biggest
thing to keep in mind is that the USA can't really deny you a green
card if you marry a citizen--so long as there was no fraud involved.

It's a relatively easy process to file the paperwork yourself. Just
follow the instructions carefully, and be careful to disclose anything
and everything they ask for. And, as always, be honest and truthful on
the forms; they will figure out if you're lying.

Thanks again!

Legolas-ga

I only wish I knew his/her qualifications!

No He isn't 

This is the legal way to do what you are doing

Marriage to a United States citizen qualifies one for a green card. If
the marriage occurs abroad, the green card petition must be filed
through a U.S. Consulate with jurisdiction over the applicants place
of residence. The procedures usually take between six to nine months
to complete. Many newly weds, for a variety of reasons, don't relish
the idea of six months of separation, or six months of waiting, before
they can enter the U.S. as a married couple.

Although, the same process that takes 6-8 months abroad, takes 12-18
months in the US, the applicant may work and live in the U.S. from the
date of filing. Thus the lengthy processing period is not as
inconvenient as it would seem. Those who apply abroad must wait out
side of the US during the entire processing period. As a result, many
newly weds prefer to undertake the entire green card application
process in the U.S., so that they can live together and work while
they patiently wait for the bureaucracy to grind out the green card
approval notice.

INS will not admit people who intend to live in the US permanently as
a non-immigrant. The choice is to file the green card application
abroad and come to the US as a permanent resident or come to the US as
a non-immigrant tourist or worker, then marry and finally file for the
green card in the U.S. In the later case, if INS knew all the facts,
they would deny entry and possibly bar entry for five years under
summary removal procedures. One may not enter the U.S. as a
non-immigrant with the intent to live in the U.S. permanently.

Rather than force people to lie about the purpose of their entry to
the U.S., in 1970 Congress created the K-1 or fiancee visa category.
The K-1 visa avoids the risk of being denied entry to the U.S. or
worse The K-1 visa permits a fiance to enter the U.S. as long as the
marriage takes place with in 90 days of entry. The visa may not be
extended so be sure to marry with in 90 days. The applicant may work
in the U.S. during the 90 day period. Immediately after the marriage,
the couple may file the green card petition, form I-130 and the
adjustment of status petition I-485 with INS. The K-1 visa tends to
reduce the INS processing period because the K-1 visa application
process requires much of the same information the INS requires for the
green card petition.

Procedures 

The U.S. citizen side of the equation files form I-129F on behalf of
the intended by mail at one of the four INS regional processing
centers. This form requires personal data or each applicant, proof the
applicants have met with in the two years prior to application and a
statement that the applicants intend to marry within 90 days of entry
to the U.S. INS will make exceptions for arranged marriages if the
applicants can show that arranged marriages are a long standing family
custom.

If the petition is approved , INS will send the file to the Consulate
nearest the residence of the alien fiance. The Consul will conduct
security clearance procedures and then schedule an interview, much
like a permanent residence interview. The applicant must supply
pictures, a medical exam, and an affidavit of support. The green card
interview and K-1 interview procedures are almost identical. If the
Consul issues the visa, the supporting documents are put in a sealed
envelop for presentation to INS at the port of entry. This same
package can be used for the adjustment of status and green card
application with INS after the marriage. The fiancee has 4 months from
the date of visa petition approval to apply for the K-1 visa at a U.S.
Consulate. Although the four month period may be extended, each
extension requests casts doubt on the ultimate intention to marry in
the U.S. The fiancee must either marry with in the 90 day period or
leave the U.S. If the fiancee leaves prior to the expiration of the 90
day period and returns, he or she will only be admitted for the
balance of the first 90 day period.

Fiancee dependents receive a K-2 visa, which doesn't permit employment
but does permit attending school.

In summary, the K-1 visa is the legal way to enter the U.S. with the
intention of marrying a U.S. citizen. Those who don't want to marry
with in 90 days need to utilize a B-1/B-2 or non- immigrant work visa
and need to hope the INS inspectors don't ask the right question.

I am a Canadian Citizen who has been visiting for a year and is going
to be marrying my American boyfriend soon. I am here in the US
visiting him, I entered using just my Drivers license and my Birth
Certificate.  Because I did it this way, I didn't receive an I-94. 
From what I understand, Canadians who are wishing to adjust their
status don't need to fill out form I-102 to get a new I-94.  If anyone
can confirm this, that'd be helpful.  So when we are married, we will
need to fill out Form I-485 (AOS) and Form I-130, In addition to the
other forms, I know these are the two main ones.  Do we file I-130
first, then file for Adjustment of Status?  Does anyone know when
exactly in this process I will need to file form I-601 with evidence
of extreme hardship regarding my spouse?  Because of course I will
want to be able to visit Canada.  If anyone can help me out with any
advice, I'd greatly appreciate it.  Thanks in advance!

Civic girl, I can give you specific information on how to do what you
intend to do legally. Simply post it as a 'question' directed to me
and I will answer it for you. Typically, on immigration questions like
what you pose, a good price is typically between $50 and $100.

Thanks!

Legolas-ga